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Battle Begins Over the Employee Free Choice Act
March 16, 2009

On March 10, 2009, Senator Tom Harkin and Representative George Miller introduced the Employee Free Choice Act of 2009 into the U.S. Senate (S. 560) and House of Representatives (H.R. 1409).  The Employee Free Choice Act of 2009 is identical to previous legislation that passed in the House in March 2007 but stalled in the Senate.  The Employee Free Choice Act (“EFCA”) is one of the most sweeping and controversial labor bills seen in decades and is poised to spark a heated political battle between organized labor and employer groups.

In its current form, the EFCA could have profound ramifications for well-established labor law and union election procedures.  The EFCA would modify the National Labor Relations Act (“NLRA”) in several ways.  The EFCA would permit a union to bypass the long-standing secret-ballot system for voting regarding union representation, to be replaced by a card-check recognition process.  If a union can present signed cards from over 50% of the identified bargaining unit, the employer would be required to recognize the union.  The card-check provision would make union organizing easier.

While much attention has been paid to the card-check provisions of the EFCA, equally concerning is the provision that, if the parties fail to reach a first contract after four months of collective bargaining negotiations, an arbitrator would be appointed to unilaterally establish the terms of the collective bargaining agreement that would be imposed upon both management and the union.  This provision would impose upon the parties a contract they did not agree to, and would deprive employees of the opportunity to vote on the contact.

While the 2008 election dramatically changed the composition of the Senate and President Barack Obama recently announced to a meeting of AFL-CIO leaders by videotaped address on March 3, 2009 that “We will pass the Employee Free Choice Act,” the future of the EFCA remains unclear.  With Al Franken being named the victor in the highly contested Minnesota election likely imminent, the Democratic Party and the Senate’s two Independents caucusing with it would hold 59 votes, needing only one Republican to join ranks in order to defeat a filibuster attempt.  Republican Senator Arlen Specter of Pennsylvania was a co-sponsor of the original bill.  However, recently Sen. Specter and several conservative Democrats have expressed reluctance to support the bill in its current form.  Some in Congress have expressed an interest in amending the EFCA to make it more palatable to wavering Senators.

Because of the serious potential implications for businesses across the economic spectrum, employers should follow the political debate over the EFCA closely.  While the bill will likely pass again in the House with ease, its passage and even its ultimate form in the Senate is uncertain.  However, passage of some version of the bill is probable.  In anticipation of potential passage and the publicity surrounding the EFCA, employers are well-advised to review their systems for discovering potential union organizing activity, including solicitation and distribution policies, electronic communication policies and ensuring employees feel free to bring issues related to their employment to managers’ attention.  Should the EFCA pass, prepared employers will be positioned to respond more nimbly to the increase in organizing activity likely to follow.  For questions, please contact a member of our Employment Team.

Paul J. Peralta

Benjamin P. Fryer
admitted in Georgia
not admitted in North Carolina